Judge: Michael E. Whitaker, Case: 22STCV25565, Date: 2022-12-06 Tentative Ruling

Case Number: 22STCV25565    Hearing Date: December 6, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Jaclyn Gutierrez, individually, and as Successor-in-Interest and Personal Representative of the Estate of Christopher Pearson, Decedent (“Plaintiff”) sued Defendants Avalonbay Communities, Inc.; ASN Woodland Hills East, LLC; Universal Protection Service, LP; and Allied Universal Executive Protection and Intelligence Services, INC. based on the death of Plaintiff’s son allegedly caused by an attack by an unknown assailant at an apartment complex. Defendant demurs to Plaintiff’s third cause of action in the Complaint for Concealment.  Plaintiff opposes the demurrer. 

Notwithstanding, Plaintiff filed and served a first amended complaint on November 21, 2022, ten court-days before the hearing on the demurrer.  Therefore, the Court finds the demurrer to be moot.    (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506 [“The filing of the first amended complaint rendered the defendant's demurrer moot since an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading”]; see also Code Civ. Proc., § 472 [“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike”].) 

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.